Vincent R. Johnson and Stephen C. Loomis' recent article, "The rule of law in China and the prosecution of Li Zhuang," published in The Chinese Journal of Comparative Law (2013), cites current and former USALI research fellows Margaret K. Lewis, Ling Li, and Elizabeth Lynch's research on corruption and criminal justice issues in China.

On Thursday, May 9th, 2013, USALI Executive Director Ira Belkin and Affiliated Fellow Maggie Lewis presented their views on Reeducation Through Labor (RETL) at the Congressional-Executive Commission on China's (CECC) Roundtable, "The End of Reeducation Through Labor? Recent Developments and the Prospects for Reform."

This article was originally published in China Law & Policy by USALI former fellow Elizabeth Lynch on August 4, 2013 under the title, “An Uncomfortable Truth: Use of Criminal Law in China's Economic Development."

As Lewis notes, and following up on recent articles in the New York Times (see here, here and here), China’s civil legal system and its regulatory state largely failed in dealing with some of China’s new economic problems – namely food safety, financial markets and environmental degradation.

But as Lewis goes on to highlight, this failure of the civil and regulatory systems does not mean that the Chinese government has not tried to stem these problems. In fact, as Lewis observes, it has, through the use of the criminal law. Recently, the Chinese government has stepped up the threat of severe criminal sanctions, including the death penalty, in an attempt to try to police this situation.

Lewis’ blog post is based upon her new research regarding how, since Deng Xiaoping’s 1978 “Reform and Opening” policy, the Chinese government has used the criminal law to propel its economic development. See Margaret K. Lewis, Criminal Law’s Contribution to China’s Economic Development (August 1, 2013). Available at SSRN: http://ssrn.com/abstract=2298923.

In fact, one of Deng’s first actions after assuming leadership was to publicly prosecute the Gang of Four, signaling the changing of the guard from political extremism to a focus on economic growth. From there, Lewis recounts the formation of many of the laws that would underpin Deng’s policy of economic growth, showing that the intention of many criminal laws was to find the “growth-enhancing sweet spot.” It’s no wonder that today in China, economic criminal liability is much broader than in most other developed countries including the United States.

Lewis’ well-researched analysis makes a strong argument for her point: that you cannot analyze China’s economic growth without looking at how it has used the criminal law to assist in that growth. But even still, it leaves you uncomfortable – there is something about the use of criminal law to propel growth that seems at odds with its purpose. This Lewis notes is likely more the result of how the West has come to define patterns of economic growth. To achieve a sustainable market economy, the government sets in place a regulatory state with certain ground rules and then lets the actors – usually companies and individuals – duke it out within the confines of an independent legal system.

But that is not what is going on here in China and it’s this bucking of the traditional historical trajectory of growth that forces scholars to look elsewhere for its explanation. In China’s case, that elsewhere might be the criminal law.

“Criminal Law’s Contribution to China’s Economic Development” is a must read for anyone who wants to understand the relationship between law and economic growth in an authoritarian state. But it also raises many questions – is this use of the criminal law sustainable? Can China solve its regulatory failure problems through state-dominated use of the criminal law? Lewis examines a few problems with its usage, especially in attempting to deter official corruption where the Chinese Communist Party is too hesitant to prosecute its own. She also explores the use of economic criminal liability to suppress dissent that officials determine is too “destabilizing” to development.

From Lewis’ review of recent criminal legislation, interpretations and call for greater criminal liability, it becomes obvious that she is right – the Chinese government is attempting to use criminal law to support its market reforms. But in a country of 1.3 billion with a land mass close to the size of the United States, how sustainable is this approach? That is a question that we hope Prof. Lewis answers in her next article.

On August 13, 2013, Margaret K. Lewis, professor at Seton Hall University School of Law and a USALI Affiliated Scholar, sat down with the hosts of NPR's Here & Now to discuss the upcoming Bo Xilai trial and China's criminal justice system. For the audio, please click here.

This article was originally published in Agence France-Presse on August 24, 2013.

Bo trial combines old and new in Chinese law: analysts

By Kelly Olsen (AFP) – Aug 24, 2013

BEIJING — The corruption trial of China's onetime political superstar Bo Xilai combines elements of unusual openness with traditional controls rooted deep in the one-party state and the country's long history, analysts say.

Bo, who held sway over nearly 30 million people as the top Communist in the megacity of Chongqing before his spectacular fall, faces charges of bribery, embezzlement and abuse of power in a scandal that has rocked the ruling party.

It is not the first time the all-powerful Communist Party has had to air its dirty laundry in public, but the level of openness in the deliberations has caught many by surprise.

"Of course this is not real justice that is being played out," said Nicholas Bequelin, Hong Kong-based senior researcher at Human Rights Watch. "This is political theatre."

Unlike previous high-profile trials, the court is providing regular but delayed transcripts on a verified social media account, offering observers a window on proceedings often seen through the distorted lens of limited state media coverage.

They have also given Bo himself an outlet for the details of his defence to reach a wide audience.

"No one expected that Bo Xilai would be given that amount of freedom to defend himself," Bequelin told AFP.

"Nonetheless the legal parts have been surprisingly good because there is a real legal process taking place there, at least in the courtroom, even though the outcome has already been decided and predetermined."

The approach has both advantages and risks for China's rulers, he added.

"Having a good trial like this, something that really looks like a real trial, will help confer legitimacy to the outcome and that's in the interest of the Party," he said.

"The cost is that it raises the expectations of the public in terms of administration of justice. Because it gives people ideas, first of all about the virtues of defence rights."

Margaret Lewis, a professor at Seton Hall Law School in the United States, contrasted Bo's trial with those of two other once high-flying officials -- Chen Liangyu, a former party secretary for Shanghai and Chen Xitong, mayor of Beijing at the time of the Tiananmen massacre -- who were convicted of corruption-related charges.

"Both of those trials were carried out completely behind closed doors," Lewis said in an e-mail. "Bo, in contrast, is at least being given an opportunity to publicly proclaim his innocence."

Chinese courts normally rely on written statements rather than live witness appearances, and Bo's cross-examination of key prosecution witness Xu Ming was unusual, she added.

But the message from the courtroom was still being controlled by the government, she stressed. "If, for example, Bo took this opportunity to name officials who have engaged in corrupt dealings, I would be absolutely shocked if that information made it into the transcript released for public view."

Chinese voices have seized on the hearings as a sign the country's legal system is changing.

The completeness of the transcripts released via social media "is record-breaking for a Chinese criminal court", well-known lawyer Chen Youxi said in comments posted online. "It will have a far-reaching impact on Chinese trials of public officials."

But Nicholas Howson, who teaches law at the University of Michigan, said the trial remains a "public performance" that was "very much in line with governance practice in China stretching back into imperial times".

"A sudden and secretive un-personing of a political figure or a Stalinesque show trial" were no longer possible in modern China, he said via e-mail, but it was still "far less than the kind of proceeding that the Anglo-American system at least aspires to have".

China has in the past allowed high-profile defendants a dramatic voice at key moments, analysts said.

Jiang Qing, widow of the revered Mao Zedong, founder of Communist China, put in a melodramatic performance at her trial with other members of the infamous Gang of Four, parts of which were shown on television.

Bo's spirited performance might be a intended as a "gamble" that the party would allow a lighter sentence so that the public felt his defence was meaningful, Lewis said.

"At a minimum, it appears that he has sought to use this trial as a vehicle for having a voice after being completely out of public view for over a year. Whatever the outcome of the trial, he has achieved that goal."